by Timothy Sandefur
August 23, 2018
As we head toward an important election season, the Arizona Supreme Court is considering several important cases about a set of controversial ballot initiatives—initiatives that in some cases didn’t satisfy the legal requirements to be placed on the ballot. These requirements are sometimes tedious and complex, but the rule is that initiative sponsors must pay careful attention to the details, at risk of being disqualified. That’s called “strict compliance,” and it’s at the center of one important lawsuit that the state’s high court must decide soon.
In the past few weeks, three trial judges have reached different decisions about whether this strict compliance rule violates the Arizona Constitution, which sets out the process for initiatives and referenda. One judge ruled that strict compliance violates the Constitution, on the theory that it is too strict—and therefore that it hinders the initiative process in ways that, the judge said, violates the separation of powers. Two other judges, however, disagreed. A decision from last week, and another one from this morning, uphold that standard.
In a brief we filed this afternoon, we argue that strict compliance is constitutional. Article IV of the Constitution—that’s the section that creates the initiative—declares that “this section shall not be construed to deprive the legislature of the right to enact any measure,” except that the legislature can’t “supersede” an enacted initiative. And the Constitution also mandates that the Legislature pass laws to ensure the “purity” of elections. It also implicitly assumes that the Legislature will regulate the initiative process; for instance, it says only “qualified electors” may vote on initiatives—and leaves it to the Legislature to decide who’s “qualified.”
True, the principle of separation of powers forbids the Legislature from redefining legal terms, since defining legal terms is the job of the judiciary. But the strict compliance law doesn’t do that—it creates a rule and says how it should be followed. And even if one assumes that the initiative process is some kind of fourth branch of government, as some academics have argued, the separation of powers rule still allows the Legislature to regulate the other branches in certain ways to protect its prerogatives. For instance, it can limit the jurisdiction of courts. Setting forth the rules for the initiative process is just another version of that—which is not a violation of separation of powers, but an example of it.
The initiative process is a dangerous one—one that, if not carefully regulated, could threaten the freedom of the people, or the rights of vulnerable minorities, or even the existence of the legislature itself. When the authors of the Constitution met in 1910 to design the initiative process, they were aware of these risks, and they tried to create what one constitutional convention delegate called “a safe and operative initiative and referendum, containing such details as will guard our legislature.” They did that by preserving the initiative power—but letting the Legislature set the rules. The Arizona Supreme Court should hold that the strict compliance standard is constitutional—and that it should be followed.
Timothy Sandefur is the vice president for litigation at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.